CHAP. XII.: Of indiscreet Speeches.

NOTHING renders the crime of high-treason more arbitrary than declaring people guilty of it for indiscreet speeches. Speech is so subject to interpretation; there is so great a difference between indiscretion and malice; and frequently so little is there of the latter in the freedom of expression, that the law can hardly subject people to a capital punishment for words, unless it expressly declares what words they are Si non tale sit delictum in quod vel scriptura legis descendit vel ad exemplum legis vindicandum est, says Modestinus, in the seventh law, in ff. ad leg. Jul. Maj. ^†421.

Words do not constitute an overt act; they remain only in idea. When considered by themselves, they have generally no determinate signification; for this depends on the tone in which they are uttered. It often happens that, in repeating the same words, they have not the same meaning: this depends on their connection with other things; and sometimes more is signified by silence than by any expression whatever. Since there can be nothing so equivocal and ambiguous as all this, how is it possible to convert it into a crime of high-treason? Wherever this law is established, there is an end, not only of liberty, but even of its very shadow.

In the manifesto of the late Czarina against the family of the D’Olgoruckys In 1740. ^†422, one of these princes is condemned to death for having uttered some indecent

words concerning her person; another, for having maliciously interpreted her imperial laws, and for having offended her sacred person by disrespectful expressions.

Not that I pretend to diminish the just indignation of the public against those who presume to stain the glory of their sovereign: what I mean is, that, if despotic princes are willing to moderate their power, a milder chastisement would be more proper, on those occasions, than the charge of high-treason, a thing always terrible even to innocence itself Nec lubricum linguæ ad pœnam facile trabendum est. Modestin. in the 7th law, in ff. ad leg. Jul. Maj. ^†423.

Overt acts do not happen every day; they are exposed to the eye of the public; and a false charge with regard to matters of fact may be easily detected. Words, carried into action, assume the nature of that action. Thus a man, who goes into a public market-place to incite the subject to revolt, incurs the guilt of high-treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished, but an action in which words are employed. They do not become criminal, but when they are annexed to a criminal action. Every thing is confounded if words are construed into a capital crime, instead of considering them only as a mark of that crime.

The emperors, Theodosius, Arcadius, and Honorius, wrote thus to Rufinus, who was præfectus prætorio: “Though a man should happen to speak amiss of our person, or government, we do not intend to punish him Si id ex levitate processerit, contemnendum est; si ex insania, miseratione dignissimum; si ab injuria, remittendum. Leg. unica Cod. Si quis imperat. maled. ^†424: if he has spoken through levity, we must despise him; if through folly, we must pity him; and, if he wrongs us, we must forgive him. Therefore, leaving things as

they are, you are to inform us accordingly, that we may be able to judge of words by persons, and that we may duly consider whether we ought to punish or overlook them.”